Canadian Employment and Legal Update: October 2022

This quarter’s legal update finds HR Specialist Judy Slutsky interviewing employment lawyer James D. Kondopulos of Roper Greyell LLP on legislation, policies, and other topics relevant to employers, particularly those in British Columbia. 

The update can be enjoyed in two formats: 

·      the written version below, which features highlights of the conversation, edited for length and clarity, 

·      in video format, where the two discuss the topics in greater detail.

Pressed for time? Skip ahead. 

S1: Sick Leave Legislation (1:30 in video) 

S2: Company Policies and Employment Offers (16:04)

S3: Card Based Union Certification (21:08) 

S4: Remote Work and Business Travel Policies (28:38)

S5: Fundamental Job Changes and Constructive Dismissal (38:25)

S6: Diversity, Equity, and Inclusion (48:52)

S1: Sick Leave Legislation 

As of this year, BC legislation entitles employees to up to three days of unpaid sick leave and five days of paid sick leave, annually. Kondopulos and Slutsky discuss the details and implications of this legislation, while providing advice for employers. 

JS: What do you see as the key legal or other implications of these types of leaves? 

JK: You want to ensure that any employer the sick leave policies already in place are compliant with the minimum requirements of the Employment Standards Act. As well, you want to be sure that you’ve not allowed for a situation where an employee can avail himself or herself of the entitlements under your policy, in addition to the minimum standards under the Act. You don’t want double dipping.

Another question is whether the employee is asking for an unpaid or a paid leave. I suggest that employers get to the bottom of that and make that inquiry up front. If the employer is unsure, I suggest the time be treated as paid sick leave, because all wages have to be paid within eight days of the pay period. 

JS: Can you comment on the employee’s obligation to provide reasonably sufficient proof of illness? That has been a concern for many clients. 

JK: If the employee produces even a pharmacy receipt, or a hospital bracelet, medical note, or some other sort of reasonable proof, that will likely be “reasonably sufficient” in the language of the legislation. The Employment Standards Branch has said that the kind of proof required will be a function of the circumstances. What is the duration of leave sought? Is the request being made on the eve of a long weekend? Does this employee have a ‘frequent flyer’ problem where he or she is out a lot? 

S2: Company Policies and Employment Offers

With so many aspects of work and legislation changing, companies find themselves adding or updating company policies regularly. Our host and guest discuss doing so in a manner that is both practical and effective. 

JS: When do businesses require legal help to draft policies? I’ve been drafting remote work policies, sick leave policies, termination policies, and retention policies. What legal support do businesses require in drafting these policies? 

JK: I’ve had clients come to me in the past and present me with a 50-page employment contract, because they’ve tried to capture every possible situation. It’s better to present employees with a two-to-three page document as their contract. It should be relatively simply worded and not riddled with legalese. 

How do we work policies into that? You want your employment offer letter/agreement to include a paragraph which says that the employee understands and accepts that his or her employment will be governed by employer policies as they now exist, or may be issued from time to time. You should refer the employee to where he or she can find these policies, such as online or in a policy handbook. You should make it clear that those policies are a term and condition of employment

S3: Card-Based Union Certification 

Bill 10, which received Royal Assent this year, allows for union certification in BC if the union obtains signed union cards from at least 55% of the proposed bargaining unit of an employee group. When this threshold is met, a secret ballot vote is no longer necessary. 

JS: Why was there a push for this change in unionized settings?

JK: Unions favour card-based certification because they say it best reflects employees’ true wishes and doesn’t allow for the employer to interfere before they cast their secret ballot vote. 

Why do employers fear this? They say that a secret ballot vote is a key democratic principle and to remove it would be undemocratic. What’s also concerning to employers is that employees might be pressured into signing union cards as a result of peer pressure inside and outside the workplace. 

JS: What kind of legal support do businesses need? 

JK: The clients can involve us to express the employer’s point of view on unionization in a non-coercive, non-intimidating way. You need to be careful about what’s said or expressed and not said or expressed because some behaviour and some language is off-side. 

S4: Remote Work and Business Travel Policies

The pandemic brought about great and potentially lasting changes in the way workplaces operate, perhaps none more significant than widespread remote work. Various aspects of this, as well as business travel policies, that many businesses may not have considered, are discussed. 

JS: I’m still working on remote work policies, because there’s so many implications. What legal support or considerations do employers need for these policies? 

JK: One is they must consider whether the workplace in which the employee will be working remotely is compliant with workers compensation and occupational health and safety requirements. 

Think also about confidential and proprietary information and how you’re going to protect against misuse. Is the employee going to be using the company network? How about personal devices?

What about overtime and rest breaks or meal breaks? 

There are jurisdictional issues. If I have an employee working in Mexico, Japan, or England, am I bound by the minimum employment or labour standard rules in those jurisdictions? 

JS: This issue has come up with most of my clients: what happens when employees are not working at their stated home address, but at a friend or partner’s? 

JK: There’s a giant ball of wax there, and lots of different legal and practical issues.  For example, if even one of your employees is not working within the area contemplated by your group benefits plan, are you going to jeopardize the integrity of the plan?

S5: Fundamental Job Changes and Constructive Dismissal 

As employee roles evolve, what does and doesn’t amount to constructive dismissal? 

JS: How far can an employer go to update employees’ job duties to meet changes in business direction or staffing? What is ‘constructive dismissal’ and how does that apply to changes in job function? 

JK: The first thing to appreciate is that constructive dismissal involves unilateral employer action – without employee agreement or consent. Consent can come through words, or actions, or even silence if a change is made and the employee sits on it for, say, three months without objecting.

JS: At what point do job descriptions need to be changed or, more importantly, new employment agreements need to be put in place? It’s happened a lot during Covid where people have left the workplace; companies have reorganized their jobs and are expecting people to do different things that don’t naturally fit together. 

JK: What I’ve done for some of my clients is provide them with language in their template employment contracts that allows the employer to change, add or take away duties and responsibilities without triggering a constructive dismissal.

S6: Diversity, Equity, and Inclusion 

Companies are looking to improve their hiring practices with regards to diversity, equity, and inclusion. Judy and James discuss reasons for doing so, as well as implications for job descriptions. 

JK: The goal of including diverse candidates or employees in the process or in the business is a commendable one from a societal perspective, but also in terms of getting the best possible people for the job. If you’re excluding people on the basis of arbitrary criteria such as race, gender, religious background, sexual orientation or the like, you’re possibly excluding highly qualified, skilled candidates. If you have a happy, healthy and inclusive workplace, you’re more likely to retain the best and recruit the best. It should be a win, win if done properly.

JS: What accommodations or modifications is the employer required to make? Do employers have to look at job requirements and ask themselves whether they’re bona fide requirements? 

JK: That should be happening as a matter of law and good sense. If you have arbitrary rules or requirements that are not properly connected to the job, you shouldn’t have those rules or requirements in the first place.